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	England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Morris v The Lord Chancellor [2000] EWHC 9001 (Costs) (4 February 2000) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2000/9001.html Cite as: [2000] EWHC 9001 (Costs)

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John Joseph Morris v The Lord Chancellor

4 February 2000

Mr Justice Ian Kennedy Sitting with Assessors

1. This criminal review case decided four points in relation to costs payable to a successful defendant who has obtained a costs order under the Prosecution of Offences Act 1985.
   

2. The facts are very complex and not readily capable of further compression by summary, though it can be said that the Appellant John Joseph Morris and his co-defendant were chairman and managing director respectively of a substantial company in the Midlands which had failed. Mr Morris was a man of substantial private means and good character and position who faced very serious charges. In his judgment the Judge said that the costs which he had to incur in preparing his defence were inevitably going to be heavy, and:

"There were some not altogether conventional aspects in the arrangements for the provision to him of legal services, which it is not necessary for the court to explore at this moment, beyond noting that they led to considerable difficulty in establishing with any precision what sums had been incurred and paid for what aspects of the preparation of the defence. This factor created particular difficulty at the determination level."

3. The first question which the Judge had to decide was whether the Determining Officer is bound by any special agreement made between the client and counsel as to the latter’s fees and the Judge had no difficulty in answering that question in the negative.
   

4. The next question posed was whether any account could be taken of the fact that legal aid had not been applied for, a point upon which the Master commented in his decision under review. Again the Judge answered the question in the negative, saying:

"Failure to apply for legal aid is not a relevant consideration in such a determination but this comment affords no reason for supposing that there was any error in the Master’s approach. There is nothing in this ground of appeal."

5. The third question posed for the Judge’s determination was whether a defendants costs order can include interest payments to be made to third parties and/or costs associated with liquidating assets to provide monies for the defence legal team. The basis of the argument was that the Act refers to "expenses", which introduces a broader entitlement than is conventionally applied in orders for costs. The Judge commented that the common law rule was that the costs of any proceedings do not extend to any expenditure arising from the need to finance the payment of those sums, as illustrated by the Divisional Court case of Westminster City Council v Wingrove (1991) 2 WLR 708 and Mann v Eccott (unreported Court of Appeal decision given in 1994). The Judge held there was nothing in the 1985 Act or the Regulations made thereunder to make a statutory or regulatory exception to the above rule, and accordingly answered that question in the negative as well.
   

6. The final question for the Judge to decide was whether in ascertaining what costs and expenses are properly payable to a successful defendant under a defendants costs order, the principles applicable to a taxation on the old standard basis under RSC Order 62 were applicable under the Costs in Criminal Cases (General) Regulations 1986. Regulation 7 of the 1986 Regulations provides that the appropriate authority shall consider the claim and allow such costs in respect of: (a) such work as appears to it to have been actually and reasonably done; and (b) such disbursements as appear to it to have been actually and reasonably incurred, as it considers reasonably sufficient to compensate the plaintiff for any expenses properly incurred by him in the proceedings. The Judge held that the effect of this was that the costs recoverable did not include costs equivalent to costs of taxation/assessment in front of the Determining Officer. He found that Order 62 introduced a statutory exception to the common law rule that the entitlement to costs ends with the order giving rise to those costs (thereby making the costs of taxation/assessment recoverable in civil cases). The Judge found nothing in the Act or Regulations to provide any further exception to the rule. Thus, while answering the last question in the positive, the Judge expressly stated that this did not entitle the defendant to his costs of preparing the bill of costs or dealing with the determination, redetermination and reasons.

Note: CCC(G) R 1986 Regulation 10(14) and 11(8) provide that costs incurred in pursuing an appeal as to costs are recoverable.